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Federal Register / Vol. 86, No. 5 / Friday, January 8, 2021 / Rules and Regulations
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employment. In the limited instance where there is no current OES
prevailing wage information for the proffered position, the registrant will follow DOL guidance on prevailing wage determinations to determine which OES wage level to select on the registration, and USCIS will rank and select based on the highest OES wage level.
b. Costs Comments: An individual commenter stated that, under the proposed rule, USCIS would incur additional costs related to maintaining records detailing how USCIS processed each H1B
petition to document the correct handling and prioritization of all petitions. The commenter also wrote that USCISs cost for processing petitions will increase significantly, as it will have to review each petition for salary, location, and job code to determine sorting order. Another commenter wrote that the proposed rule indicates that DHS would not incur additional costs to the government because the agency could increase filing fees to cover costs, but that, itself, indicates the proposed rule would result in costs to DHS that should have been fully analyzed.
Response: The INA provides for the collection of fees through USCISs biannual fee schedule review, at a level that will ensure recovery of the full costs of providing adjudication and naturalization services by DHS. This includes administrative costs and services provided without charge to certain applicants and petitioners.144
DHS notes the time necessary for USCIS
to review the information submitted with the forms relevant to this final rule includes the time to adjudicate the benefit request. These costs are captured in the fees collected for the benefit request from petitioners. DHS accounts for familiarization cost and additional costs due to the increased burden per response for the petitioners, which is shown as costs in the Regulatory Impact Analysis. Other form applications and petition fees will cover the increased adjudication costs until the fee rule is reassessed Comment: One commenter wrote that the proposed rule likely would require technical changes to USCISs registration system that the agency has already implemented for the FY 2021
H1B cap season. The commenter added that it is noteworthy that the proposed rule follows a recent announcement that USCIS must furlough 70 percent of its workforce. Another commenter said 144 See
INA section 286m, 8 U.S.C. 1356m.

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that, if this rule is put in place, companies will stop hiring foreign workers and USCIS will lose the revenue from this program as it is already in a fiscal crisis.
Response: The President of the United States signed into law the Continuing Appropriations Act, 2021 and Other Extensions Act, H.R. 8337,145 which became Public Law 116159, on October 1, 2020. This public law includes language from the Emergency Stopgap USCIS Stabilization Act, which allows USCIS to establish and collect additional premium processing fees, and to use those additional funds for expanded purposes. Because of the authorization to increase premium processing fees, and cost-savings measures taken by the agency, USCIS is in a better place financially. As a result, USCIS was able to avoid all potential furloughs, and, barring unforeseen changes in circumstances, any potential furloughs in FY 2021.146
c. Benefits Comment: An individual commenter wrote that the proposed rule has been criticized for favoring larger firms over smaller businesses and startups, but it is unlikely that these types of businesses would immediately need the types of high salaried workers who would qualify for an H1B visa. Instead, the commenter said there should be sufficient domestic talent under this rule to meet those labor needs. An individual commenter wrote that the proposed rule would have the benefit of curbing the practice of employers underpaying H1B petitioners by offering level I wages to those with sufficient experience for higher wages.
As a result, employers will not be able to favor cheaper international labor and would consider domestic labor.
Response: DHS agrees with this commenter that there should be sufficient replacement labor available in the U.S. workforce that can meet domestic labor needs. This rule will help the U.S. workforce, as employers that might have petitioned for capsubject H1B workers to fill relatively lower-paid, lower-skilled positions, may be incentivized to hire available and qualified U.S. workers for those positions.
145 Continuing Appropriations Act, 2021 and Other Extensions Act, Public Law 116159, 134
Stat. 709 Oct 1, 2020.
146 See U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, USCIS
Averts Furlough of Nearly 70% of Workforce Aug.
25, 2020, https www.uscis.gov/news/newsreleases/uscis-averts-furlough-of-nearly-70-ofworkforce.

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Comment: Referencing DHSs suggestion that one of the proposed rules unquantified benefits is increased opportunities for lower-skilled U.S.
workers in the labor market, an individual commenter stated that lowskilled workers cannot replace H1B
specialty occupation workers.
Response: DHS disagrees. If an employer is hiring an entry-level employee at a level I prevailing wage, then an available and qualified U.S.
worker can be a substitute.
2. Paperwork Reduction Act Comments: A commenter stated that requiring an employer to provide a wage level at the time of electronic registration for the H1B cap seems to violate the Paperwork Reduction Act PRA, which generally only permits the collection of information needed to meet a legally supported objective. The commenter indicated DHS has not adequately explained how collecting the OES prevailing wage level at the time of electronic registration is consistent with the PRA, as employers are not required to obtain an LCA at the time of the electronic registration for the H1B cap.
Response: DHS disagrees that requiring the registrant to provide the wage level that the proffered wage corresponds to for the relevant SOC and area of employment, or that corresponds to the position requirements when OES
wage data is unavailable, at the time of electronic registration for the H1B cap would violate the PRA. Once this rule becomes effective, collection of such information would be needed to implement the rule and to select registrations in accordance with this rule, and thus would be a legally supported objective. As noted in the NPRM, an LCA is not a requirement for registration. However, consistent with the registrants attestation that the registration is submitted for a valid offer of employment, DHS expects each registrant i.e., the prospective petitioner or the attorney or accredited representative submitting the registration for the prospective petitioner to know and be able to provide the relevant corresponding wage level when submitting a registration, regardless of whether they have a certified LCA at that time.
F. Out of Scope An individual commenter called for relief for those who need housing and food, instead of bringing in foreigners.
Another individual commenter said that the increase in H1B visas and outsourcing to foreign contractors caused their spouses wages to stagnate despite increased responsibility, and
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